In terms of Section 64(1) of the Labour Relation Act No. 66 of 1995 “LRA”, every employee has a right to strike, and every employer has a recourse to lockout. The Code of Practice on Collective Bargaining, Industrial Action and Picketing was created to provide practical guidance on collective bargaining, the resolution of disputes of mutual interest and the resort to industrial action.
This is intended to be a guide to those who engage or want to engage in collective bargaining or who seek to resolve disputes of mutual interest by way of mediation, conciliation, arbitration, or alternatively industrial action as a last resort.
Collective bargaining is a process in which organised labour in the form of trade unions and employers or employers’ organisations negotiate collective agreements to determine wages, working conditions and/or other matters of mutual interest. The collective bargaining process may be established by legislation, and/or a collective agreement.
The right to engage in collective bargaining and the right of workers and employers to embark on industrial action is constitutionally protected. The right to engage in collective bargaining is a right that employees through trade unions and employers through employers’ organisations share.
Workers have the right to strike, and the Constitutional Court has held that the right to engage in collective bargaining implicitly recognises the employer’s right to exercise some economic power, which may include the right to lockout.
The Act distinguishes between three kinds of disputes, namely:
- Disputes of right:
A dispute of right is a dispute that the Act or other employment laws require to be settled by arbitration or adjudication. An example of a dispute of right is a dispute arising from a contravention of a collective agreement or an employment law such as unfair dismissal, unfair discrimination, and underpayment of wages. It can be described as a dispute concerning existing rights.
- Disputes of mutual interest:
A dispute of mutual interest, on the other hand, is a dispute concerning employment or labour relations that cannot be resolved through enforcing existing rights. It can be described as a dispute to create new rights. A dispute of mutual interest is the legitimate scope of a collective bargaining agreement and the matters which may legitimately form the subject of a protected strike or lockout.
- Disputes involving the socio-economic interests of workers:
A dispute involving the socio-economic interests of workers permits protest action in matters that extend beyond matters that form the subject matter of collective agreements.
Section 64(1)(a) of the LRA requires “the issue in dispute” to be referred to a Bargaining Council or to the CCMA. However, before a strike notice is issued: 30 days must lapse from when the dispute was received by the CCMA or Bargaining Council, or a certificate must be issued stating that the dispute remains unresolved. A written notice stipulating the commencement of the strike must be issued to the employer at least 48 hours before a protected strike may commence.
Section 69 of the LRA regulates picketing of striking employees. The purpose of picketing is to allow striking employees to peacefully demonstrate their demands in a demarcated area as may either be agreed upon between organised labour and the employer or ordered by the CCMA or Bargaining Council.
In closing, it is important to note that when exercising one’s right to strike and recourse to lockout should be the very last resort for parties to consider, as it has a detrimental economic impact on both employers and employees alike.
Dispute Resolution Official – Polokwane